Suresh Kumar Yadav vs State of U.P.

Vinod Prasad, J.—Applicant Suresh Kumar Yadav is an accused in Crime Number 2246 of 2005 under Sections 147, 148, 149, 307 and 302, I.P.C., Police Station Kotwali district Lalitpur (Session''s Trial Number 14 of 2006). He has filed the above noted bail application in this Court seeking his release on bail in the aforesaid crime number after the same is refused by the Session''s Judge, Lalitpur, vide his order dated 5.5.2006, Annexure-5, to this bail application.

The prosecution allegations against the applicant, as is culled from the F.I.R. (Annexure-1), are that Ram Singh son of Raghubir Singh is the driver of Bundela brothers of Lalitpur. On 10.11.2005 he was carrying Sanjai Singh Bundela, Dhirendra Pratap Singh and Babboo Soni in a Scorpio Jeep to Lalitpur from Kala Pahad. He had to stop on a railway crossing near a railway signal because the crossing gate was closed at 4.45 p.m. that date. At that time Jeep No. U.P. 094 A 8084 carrying Jai Ram Singh, Jogendra Singh alongwith his gunner, younger son of Jai Ram Singh, wife of Jai Ram Singh, Gajendra Raja and three others reached there and stopped the Jeep by the side of informants Scorpio Jeep and surrounded informant and his passengers. Informant and other persons got down from the Scorpio Jeep and inquired as to what was the matter on which Jogendra Singh pointed his rifle towards the chest of Sanjai Singh and challenged that he wanted to fight the Panchayat President election against him and therefore they will not spare him and no sooner thereafter Jairam Singh from Sten Gun and rest from their pistols started firing at the informant and his co-passengers as a result of which Sanjai Singh, Dharmendra Singh sustained gun shot injuries and died on the spot and Babboo alias Brijesh Soni sustained many firearm injuries. Kailash son of Mukundey, Usman Khan son of Pir Khan, reached on the spot and witnessed the incident. Jai Ram Singh accused had also sustained firearm injuries from the firing made by his associates. Informant rushed to the police station Kotwali and got the F.I.R., Annexure-1 scribed from Balbhadra Singh and lodged it at 7.35 p.m. covering a distance of 4-1/2 kms. that day itself. The incident as is mentioned in the body of the F.I.R. occurred on 10.11.2005 at 4.45 p.m. The autopsy reports on the dead bodies of Sanjai Kumar Singh alias Sanju Raja, Dharmendra Paratap Singh, were conducted on 11.11.2005 at 1.30 and 4.10 a.m. and these reports, Annexures-2 and 3, indicates that they were found to have sustained firearm wounds and the cause of their death were ante mortem injuries. Injured Brijesh Kumar Soni was medically examined on 10.11.2005 at 6.30 p.m. (Before the F.I.R. was registered), vide Annexure-4, and his medical examination report shows that he sustained four firearm wounds and two lacerated wounds. In the opinion of the doctor his injuries numbers 1 to 4 were caused by firearm and rest numbers 5 and 6 were caused by blunt object. His medical examination report also shows that he was brought to the hospital by unknown person as after writing B/B rest was left blank by the doctor. His medical report also indicate that he was advised x-ray for injuries No. 1 to 4 of left thigh, pelvic region and right hand. On these allegations the applicant has applied for his release on bail.

I have heard Sri G. S. Chaturvedi, learned senior counsel assisted by Sri Samit Gopal, advocate on behalf of applicant and learned A.G.A. in opposition.

It is contended by Sri Chaturvedi that the prosecution case is absolutely false and cooked up and the prosecution has suppressed the genesis of the incident. He contended that in this case it was the prosecution side which had opened the fire at Jairam Singh who sustained injuries on his chest and abdomen and in his defence his gunner resorted to firing from his sten gun at the call of Jairam Singh to save his life. He further contended that F.I.R. was cooked up later on and it is because of this reason that though the injured was medically examined at 6.30 p.m. but no F.I.R. was lodged at the police station at that time nor any intimation was sent to the police station immediately thereafter and subsequently the F.I.R. was lodged after a gap of one hour at 7.35 p.m. He contended that it is because of the reason that it is pot mentioned in the injury report of the injured Brijesh Soni as to who brought him to the hospital and after writing B/B rest was left blank to be filled up later on as to suit the prosecution and this fact also indicate that the F.I.R. was cooked up much later after due deliberation and consultation. Sri Chaturvedi also submitted that it is cross case and the F.I.R. from his side was also registered but the police in connivance with prosecution side submitted a final report as the prosecution side is politically very influential and socially very strong. He also submitted that after implicating the applicant and other persons in the case even the house, office and vehicle of co-accused Jairam Singh was set to fire by the henchmen of the prosecution so much so that the motor cycles of the police personnels were also burnt for which the police has registered a case against those culprits (Annexure-17). He also contended that after the final report was submitted, the two persons from the prosecution side Pawan Singh Bundela and Babboo Soni have been summoned as accused by the C.J.M., on 12.5.2006 for offence u/s 307, I.P.C. (Annexure-20) on the protest petition filed by the Jairam Singh co-accused on 6.4.2006 (Annexure-19). He also submitted that discharge summary of the Jairam Singh Yadav co-accused (Annexure-21) of Indraprastha Apollo Hospitals, Delhi, shows that he had sustained serious firearm injuries which could not be manufactured and that too on the chest and abdomen in front of his body and therefore they cannot be the injuries from the firing made from the persons of his side. His discharge report shows that he had undergone exploratory laprotomy with repair of colonic iliac with other abnormalities. He also submitted that the applicant is in jail since 16.11.2005 and he was the gunner of Jairam Singh Yadav and he had opened fire at his call to save his life as he was duty bound to save him from being done to death. He also submitted that it is not believable that a person travelling with his wife and younger son will open the assault on other rival side to put the life of his wife and younger son in jeopardy especially when he is an advocate and knew the consequences of such an incident very well. He further contended that it was the prosecution side which opened fire at Jairam Singh Yadav who sustained gun shot injuries on his chest and abdomen and he yelled out to the applicant to save his life on which the applicant opened fire from his automatic weapon that the real culprits lost their lives and sustained injuries while saving themselves from automatic shots fired by the applicant in self defence to save the life of Jairam Singh Yadav. Learned senior counsel has also pointed out the criminal history of Pawan Singh Bundela (Annexure-25) and that of Sanjai Singh alias Sanju Raja and Dharmendra Pratap Singh, the two deceased (Annexure-24). He also contended that the father of Sanjai Singh Bundela is a minister in the present Government and therefore the prosecution and the police are dancing on his tune and has falsely implicated the applicant in the present crime when he has acted in the right of private defence of Jairam Singh Yadav for whose protection he was issued automatic weapon by the Government. On these submissions learned senior counsel has prayed that the applicant deserves to be released on bail.

Learned A.G.A. contrarily submitted that in this case two persons have been shot dead in day light and one person had sustained injures and the applicant is one of the main culprits. He contended that it was the weapon of the applicant which was used in the crime and there is an explanation of the injuries of Jairam Singh Yadav in the F.I.R. lodged by the prosecution. He also contended that prosecution side had sustained injuries on the back, which indicates that they were shot at while running. He also submitted that cross version was found to be false and a final report was submitted by the Investigating Officer but later-on, on the protest the two persons from the side of the prosecution have been summoned. He contended that the defence of the applicant is false and cooked up. He also contended that F.I.R. is prompt and there are eye-witness account of the incident and the applicant does not deserve to be released on bail.

I have given my anxious consideration on the rival submissions made by both the sides and have gone through the record of this bail application.

In this case time, place and number of persons present on the spot at the time of incident, weapon of assault is admitted to both the sides. It is also admitted that the co-accused Jai Ram Singh Yadav was travelling alongwith his wife and younger son. It is also admitted that Jairam Singh Yadav had sustained injuries on his chest and abdomen from gunshots. It is also admitted that there is a cross F.I.R. and in the cross version of the co-accused Jairam Singh Yadav two persons from the side of the prosecution have been summoned as accused for offence u/s 307, I.P.C. It is also admitted that in the medical examination report of the Injured Brijesh Soni after B/B rest of the writing is blank. It is also admitted that the medical examination of the injured was got done one hour before the F.I.R. was lodged and at the time of medical examination of the injured but no information to the police was sent regarding the injury sustained by the injured and the injured also did not disclose to the doctor as how he had sustained injuries. It is also admitted that in both the injuries of the co-accused Jai Ram Yadav blackening was found to be present indicating that he was shot at from a close range on front of his body on chest and in abdomen. It is also admitted that those injuries are not manufactured and manipulated. The only bone of contention between the contesting sides is the manner of assault and starting of the incident. According to the prosecution it was the accused Jai Ram Singh and his associates who started the assault by firing where as according to the defence it was the prosecution side which started firing at Jai Ram Singh to murder him and the present applicant fired to save his life in his defence after he called him to save his life. Further cogitating over the matter, I find that which side was the aggressor can be decided at the stage of trial. At this stage it not possible to hold that the version of the defence is false or cooked up as it will not only prejudice the defence case but will also affect the merit of the cross version which is to be judged during the trial in which two persons of the prosecution side are the accused for offence u/s 307, I.P.C. Moreover it is difficult to swallow that Jai Ram Singh will pick up the quarrel to jeopardize the life of his wife and child, at a lonely place and it is also difficult to believe without expressing any opinion on merit finally, the prosecution explanation that Jai Ram Singh Yadav sustained injuries from a close range from the firing made by his own men. The F.I.R. was lodged after a gap of one hour from the medical examination of the injured Brijesh Soni from the side of the prosecution and the injured did not inform the doctor as how he had sustained the injuries. No intimation was given to the police regarding the said injuries. The right to life is the most sacrosanct fundamental right than all other rights because if the life is lost all other rights become nugatory and meaningless that I consider it appropriate to grant bail to the applicant on the conditions mentioned below because the applicant must get a fair chance to substantiate his version that he acted in preservation of the corpus of Jai Ram Singh Yadav for whose protection he was issued sten gun and which was his duty to protect as his gunner.

Let the applicant Suresh Kumar Yadav be released on bail on his furnishing a personal bond and two sureties each to a tune of Rs. One lakh to the satisfaction of Chief Judicial Magistrate, Lalitpur in crime number 2246 of 2005 under Sections 147, 148, 149, 307 and 302, I.P.C., Police Station Kotwali district Lalitpur (Session''s Trial Number 14 of 2006). One of the two sureties will be his near relative. The applicant is directed to report to the police station concerned every alternate Sunday at a time to be intimated to him by the officer in charge of the police station concerned. The applicant is directed not to leave the district without intimation to the court concerned and information to the police station concerned. The applicant is further directed not to take unnecessary adjournments and co-operate with the trial. The applicant is further directed not to tamper with prosecution witnesses and not to make any endeavour to entice them.

The trial court concerned is directed to expedite the trial and make an endeavour to conclude the same, if possible within six months, from the date of receipt of the certified copy of this order by it.